Under the Family and Medical Leave Act, employees are not eligible for job-protected leave until they have worked a minimum of one year for the employer, and 1250 hours in the past twelve months. Last week, the Eleventh Circuit Court of Appeals addressed whether employees who have not yet reached these milestones can still claim that the employer interfered with their pre-eligibility requests.

In Pereda v. Brookdale Senior Living Centers, Inc., the plaintiff became pregnant, and told her employer that she would need FMLA leave for the birth of her child. At the time of her request, the plaintiff had not worked a year for the employer, but would have crossed this threshold by the anticipated beginning of the leave. She alleged that once her supervisors became aware of her request, they began to harass, and ultimately fired her for failure to meet unattainable work goals.

The employer contended that because the plaintiff was not FMLA-eligible at the time of the alleged harassment and termination, she could not claim protection under the statute's interference provisions. While noting that this was a novel legal question, the Eleventh Circuit reversed a grant of summary judgment for the employer. Given that the FMLA requires employees to provide advance notice of the need for leave, creating a loophole allowing employers to terminate them before eligibility is incompatible with the Act's purpose.

Whether or not the employee is eligible for FMLA leave at the time of the request, employers may not terminate or otherwise interfere or retaliate against them in order to avoid having to provide FMLA leave at a later date. As always, employers should document and be prepared to demonstrate the legitimate, non-discriminatory reasons for the adverse employment action taken.